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Judgment
15 paragraphs · 370 wordsThe petitioners in their Application for probate valued the assets at Rs. 14,031-9-2. The counter-petitioner objected that their valuation was too
low and the proper valuation was found to be Rs. 26.547-14-6. The counter-petitioner has now appealed and has paid stamp duty ad valorem on.
Rs. 14,031-9-2. It is contended by the petitioner that stamp duty should be paid on Rs. 26, 547-14-6. The counter petitioner replies that he need
not have paid more than Rs. 2 stamp duty as the appeal falls under Article 1 or Article 11, Schedule II, of the Court-Fees Act, and that in any
case he is not bound to pay on more than the petitioner''s valuation. We do not think Article 11 of Schedule II applies, for the order appealed
against undoubtedly has the force of a decree as it decides the representative title and to this extent we agree with the decisions of this Court in
Appeal No, 94 of 1900 and Appeal 54 of 1900. In support of the contention that Article 1 of Schedule II applies, we are referred to the case of
Jamsang Devabhai v. Goyabhai Kikhabhai ILR (1891) B. 408 and Upadhya Thakur v. Pershdi Singh ILR (1896) C. 723. These decisions
undoubtedly support the contention. The question of the applicability of Article 1 of Schedule II was not considered in Appeals Nos. 54 and 94 of
1900 already referred to, and we are prepared to follow the Calcutta and Bombay decisions. We also think that on principle an ad valorem stamp
should not be levied in such cases. The only title which the order appealed against gives to the petitioner is the right to administer the estate and if
he has to sue to recover the estate he will have to pay stamp duty on its value. We do not think stamp duty on the value of the estate should be
twice exacted. On the merits, taking the evidence at the highest, there is no evidence that the witnesses signed in the presence of the testator as
required by Section 50 of the Succession Act. The will is therefore not proved and the order of the District Judge is set aside. No costs will be
allowed throughout.